USCIS Rescinds Deference to Prior Approvals in Deciding Visa Extensions
Extensions and Deference: Another Change in Policy
As of a new policy memorandum issued on October 23rd, 2017, USCIS has rescinded its longstanding policy in which it had relied on previous petition approvals in reviewing extensions filed by the same parties. The rescinded policy included the USCIS memo in effect since April 23, 2004 titled: “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,” as well as section VII of the August 17, 2015 policy memo: “L-1B Adjudications Policy.”
These previously effective memos were crucial in nonimmigrant petition extensions as they provided for certain deference to be given to previous USCIS approvals of petitions filed by the same parties. That guidance was followed for many years and gave a treasured consistency and peace of mind to the parties involved. It was often the case that if a petition was approved by USCIS once, absent any changes of material or circumstance, the extension petition on the same facts would have been approved.
In other words, USCIS adjudicators were directed to accept previous visa eligibility findings in visa extension cases filed by the same parties, with the exception of the following conditions:
- When there was a material error with regard to the previous petition approval.
- When a substantial change in circumstances has taken place.
- When there is new material information that adversely impacts the petitioner or beneficiary’s eligibility.
So what do the new policy requirements entail?
Reasons for Reversal
According to the new memo, USCIS is reverting to pre-2003 conditions in order to better align itself with the agency's current priorities as well as in order to better protect American workers.
One of its supposed qualms with the previous guidance was that it appeared to place the burden of proof on adjudicators rather than the petitioners, contrary to what is directed by INA § 291, which states that the inverse should always be the case. Under the guidance of the 2003 and 2015 memos, USCIS argues, its officials were forced to obtain and review a separate record of an initial nonimmigrant visa petition that had been approved in order to sufficiently judge whether the underlying facts in the current extension of status request have truly remained the same, thus shifting the burden of proof away from the petitioner.
Moreover, the agency maintains that, while the memos allowed adjudicators to review cases and refrain from simply deferring to the prior judgment if an inconsistency was found between the initially approved proceeding and the request for extension, its ability to engage in fact-finding was unduly constrained by the prior approval.
Changes Introduced by the New Policy
As stated in USCIS's October 23rd memo, it is re-shifting to a more deliberate consideration of each case as based on its merits, rather than deferring to the previous petition's approval when the facts regarding the parties remain the same. Still, USCIS does acknowledge that, in certain conditions, a petitioner may not be initially required to submit supporting documentary evidence with an application for status extension in absences of a change of circumstances for the same beneficiary (See, e.g., 8 CFR §§ 214.2(h)(14), (l)(14)(i), (o)(11), and (p)(13).
However, in such cases USCIS states that its authority is now unabridged in submitting requests for additional evidence. The agency continues to reinforce this point by providing guidance that adjudicators should never feel constrained in requesting additional documentation when adjudicating a petition extension, including the utilization of such USCIS mechanisms as requests for evidence, notices of intent to deny and the adjudication of petitions for nonimmigrant benefits.
Likely Effects on the Extension of Status Process
Since the change in USCIS policy, we have already witnessed a spur of Requests for Evidence and Notices of Intent to Deny in nonimmigrant petition extensions, after several previous approved extensions. It is unfortunate and illogical that USCIS adjudicating standards should constantly be changing. Petitions that were decided under previous USCIS standards are now being re-adjudicated under the new trends. This is especially noticeable with H-1B petitions filed with Level 1 wages, which are now being consistently and increasingly scrutinized by USCIS.
It is therefore of great importance to treat each extension petition as a new case and prepare for it with extensive documentation in order merit the desired approval. As always, you should always consult with your legal counsel and review all the documentation before engaging in any action that may affect your current or future nonimmigrant status within the U.S.